Friday, April 19, 2013

Supreme Court Limits Human Rights Suits

In a case closely watched by human rights groups and multinational corporations, the Supreme Court today narrowed the ability of foreign victims of human rights abuses to turn to U.S. Courts for alleged violations of international law committed abroad.

The case was brought by 12 Nigerian plaintiffs against Royal Dutch Shell headquartered in the Netherlands. The Nigerians, who were granted asylum and are now living in the U.S., claimed that Shell aided and abetted human rights violations in Nigeria between 1992 and 1995. They sought to sue the corporation under the Alien Tort Statute (ATS), a federal law that allows foreigners to bring lawsuits in U.S. federal court for violations of human rights law.

But today the Court barred the suit from going forward.

Chief Justice John Roberts wrote, "The question here is not whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign."

Roberts wrote that in the Nigerians' case that "all the relevant conduct took place outside the United States."

"And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application, " he wrote.

"Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices."

Jonathan Hafetz , a professor of law at Seton Hall University School of Law, said that today's decision "says that unless there is a sufficiently strong nexus to the United States, the ATS can't be used to enforce human rights violations."

For the last 30 years, human rights groups had used the ATS to hold human rights violators accountable to their victims. Several groups criticized today's decision.

"This decision so severely limited a law that has for decades been a beacon of hope for victims of gross human rights violations. The United States has been a leader in the fight against impunity, but this decision cuts a hole into the web of accountability," said Human Rights First's president, Elisa Massimino, in a statement. " Human rights abusers may be rejoicing today, but this is a major setback for their victims, who often look to the United States for justice when all else fails," she said.

Hafetz says the message today's decision sends is that "human rights advocates can no longer rely in the same way on U.S. Courts to remedy human rights abuses that occur in a foreign country."

Peter Rees, Shell's legal director, reacted to the decision in a statement: "In our view, the Court has reached the right decision. Shell remains firmly committed to supporting fundamental human rights in line with the legitimate role of business, and I want to make clear that we deny, in the strongest possible terms, the allegations made by the plaintiffs in this tragic case. Today's decision doesn't weaken the human rights of people around the world; it makes it clear that the Alien Tort Statute does not provide a means for claims to be brought in the U.S. which have nothing to do with the U.S."

The decision was praised by the U.S. Chamber of Commerce. "The U.S. Supreme Court's decision today ensures that trial lawyers cannot continue to use the American judicial system to expose global businesses to frivolous and costly lawsuits," said Thomas J. Donohue, president and CEO of the U.S. Chamber. "Today's decision helps to ensure that America will continue to be an attractive place to do business and removes barriers for companies looking to do business throughout the world."

Paul Hoffman, the lead counsel for the Nigerian petitioners, said today, "We are deeply disappointed on behalf of our clients and their case in the Court's decision." He called the opinion a "terrible blow to our clients after a very long search for justice."

Roberts was joined by Justice Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito. Kennedy and Alito also wrote separately. Justice Stephen Breyer, joined by the liberals on the Court (Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor), wrote an opinion agreeing with the Court's judgment to bar the suit from going forward, but not in the Court's reasoning.

"I would not invoke the presumption against extraterritoriality," Breyer wrote. He said he would find jurisdiction under the ATS when the conduct occurs on American soil, the defendant is an American national, or the defendant's conduct "substantially and adversely affects an important American national interest." Breyer wrote, "That includes a distinct interest in preventing the United States from becoming a safe harbor" for a torturer.

Hoffman said that it is "much less clear" what the decision means for the future. "From reading all the opinions, the Court is still uncertain to the extent of claims that arise outside the United States."

Hoffman pointed to a concurrence written by Justice Anthony Kennedy. "My sense is that what Justice Kennedy was saying is that he hasn't made up his mind about where he would draw the line. " Hoffman noted that there are several similar ATS cases pending across the country.

"The cases involving US corporations are going to be the strongest cases to survive this ruling" said Hoffman. "The cases that are going to have more difficulty will be cases involving foreign corporations and cases involving corporations with less connection to the United States."

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